Sometimes, the timing of a new will raises difficult questions.
John had always assumed his father’s estate would be divided equally between the three children. That was what his father had said for years and it reflected the previous will that had been prepared some years earlier.
Over the last eighteen months of his life, however, things changed.
After becoming increasingly frail, John’s father came to rely heavily on one of his daughters. She moved into the property to help with shopping, medication and hospital appointments. Contact with the rest of the family became less frequent. Telephone calls went unanswered. Visits became difficult to arrange and, on more than one occasion, family members were told it was “not a good day”.
When John’s father died, the family expected the estate to be administered without difficulty.
Instead, they were told that a new will had been signed just six weeks before his death.
Under the new will, almost the entire estate passed to the daughter who had been providing care. John and his brother were left modest cash gifts representing only a small fraction of what they had expected to receive.
The immediate reaction was anger.
Their first instinct was that their sister must have forced their father to change his will.
But suspicion alone is not enough.
One of the first questions we discussed was not whether the will was fair, but whether there was evidence capable of challenging it.
Did their father have the mental capacity to make a new will?
- Had he understood what he was signing?
- Who had arranged the appointment with the solicitor?
- Was anyone else present?
- What did the solicitor’s attendance notes record?
- Were medical records available?
- Had there been previous discussions about changing the will?
As the evidence was gathered, a more detailed picture emerged.
Medical records showed fluctuating cognition. Some days he appeared perfectly lucid. On others, he was confused and forgetful.
The solicitor’s attendance notes became particularly important. They recorded the questions asked, the reasons given for changing the will and the steps taken to satisfy themselves that their client understood what he was doing.
Statements were obtained from family members describing the changes they had witnessed during the final months of his life. Telephone records, correspondence and diary entries all helped establish a chronology.
Rather than rushing into litigation, the parties agreed to exchange evidence at an early stage.
That evidence significantly narrowed the issues in dispute.
Although there remained genuine concerns about capacity and the circumstances in which the will had been prepared, there were also litigation risks on both sides. Neither party could be confident of succeeding at trial.
The parties ultimately agreed to mediate.
Following a full day’s mediation, a settlement was reached that avoided the costs, delay and uncertainty of a High Court trial.
Nobody left believing they had achieved everything they wanted.
But they avoided spending a substantial proportion of the estate on legal costs, allowing far more of the estate to remain within the family.
What legal issues arose?
Disputes of this nature often involve more than one legal issue.
Questions may arise about:
- Whether the deceased had the mental capacity to make a new will.
- Whether they knew and approved its contents.
- Whether there are suspicious circumstances requiring greater scrutiny by the court.
- Whether undue influence may have played a part.
- Whether the solicitor preparing the will followed appropriate safeguards.
- Whether mediation offers a better outcome than contested litigation.
Every case turns on its own facts. A will made shortly before death is not automatically invalid, just as an earlier will is not automatically correct.
What can we learn?
Many people contact us because something simply “doesn’t feel right”.
Sometimes those instincts are supported by evidence.
Sometimes, after investigating the circumstances carefully, the evidence points the other way.
The important point is not to reach conclusions too quickly. The courts decide these cases on evidence, not suspicion.
Obtaining the solicitor’s file, medical records and witness evidence at an early stage often provides a much clearer picture of what happened.
Where appropriate, disputes can often be resolved through negotiation or mediation, avoiding the significant cost and emotional strain of a trial.
Concerned About a Will Made Shortly Before Death?
If a loved one changed their will shortly before they died and the circumstances do not feel right, it is important to establish the facts before drawing conclusions.
We can help investigate the circumstances surrounding the will, obtain relevant evidence and advise you on the options available, including negotiation, mediation and, where necessary, court proceedings.
If you have concerns about the validity of a will, contact our contentious probate solicitors for an initial discussion about your position and the next steps.
